Its not all about the Wills Bill 2025

Approximately 42% of marriages in England & Wales end in divorce, based on recent statistics from the ONS. For civil partnerships, the dissolution rate is marginally lower.

This means that those marriages and civil partnership that don’t end in divorce, annulment or dissolution end with the death of one of the parties.  In short, once married the only way out is either death or divorce. Consumers need a family solicitor or a private client solicitor / will writer to sort out who gets what and make sure their wishes are respected. But what is strange is the lack of communication and joined up thinking between family and private client departments in law firms.

The recent debate in the House of Lords about weather nuptial agreements in England & Wales should be put on a statutory footing and made binding between the parties received lots of coverage on Today’s Family Lawyer but hardly a mention on Today’s wills and Probate (until now).

Private Client departments and will-writers should be paying close attention to those developments. In England & Wales, prenuptial agreements and postnuptial agreements are not currently automatically legally binding. However, courts will generally uphold these agreements if they meet certain conditions and are deemed fair.

Nuptial Agreements lesson 101:

Prenups: are agreements made before marriage or civil partnership. Courts consider them persuasive, especially after the landmark case of Radmacher v Granatino (2010), which established that such agreements should be upheld if entered into freely, with full understanding, and without unfairness.

Postnups: are similar but made after marriage or civil partnership. Courts also give weight to these agreements, provided they are fair and meet the same criteria as prenups.

The requirements for a nuptial agreement to be enforceable is that both parties should:

1. fully disclose their financial circumstances and have access to independent financial advice;
2. obtain independent legal advice; and
3. ensure the agreement if fair and does not disadvantage one party or any children involved.

Parties need separate independent legal and financial advice to ensure that both individuals fully understand their rights, obligations, and the potential implications of the agreement. This ensures avoiding coercion so that no party feels pressured or unduly influenced by the other. Separate advisors explain the terms clearly, ensuring both parties comprehend what they are agreeing to. Each party’s advisors ensures that their client’s interests are represented, and that the agreement doesn’t disproportionately benefit one party over the other. Taken together it means the court is more likely to uphold the agreement if it demonstrates fairness and infirmed consent.

The Solicitors Regulation Authority (SRA) emphasises the importance of avoiding conflicts of interest when acting for clients, including in nuptial agreements. Solicitors must not act for two parties in situations where there is a significant risk of a conflict of interest. This is particularly relevant in nuptial agreements, as the interests of the two parties may not align.

While it is not strictly prohibited for one solicitor to act for both parties, it is highly discouraged as it raises serious questions about conflicts of interest, potentially undermining the fairness and impartiality of the agreement and ultimately its enforceability.

So why does this matter to private client solicitors and will writers? In short, mirror wills. We regularly act for spouses and civil partners in making wills for both parties at the same time. Often these parties are on second or subsequent relationships and have modern blended families with a mixture of full, half and stepchildren.

Those writing wills have to be wary of a dominant party, particularly in cases where there may be coercive or controlling behaviour, securing disproportionately favourable terms for one side of the family over another at the expense of a vulnerable party. We have to have clearly documented evidence on our files, in case of later challenge, that confirms that each party fully understood the terms of the wills and that it was entered into freely and fairly.

If a couple have a nuptial agreement in place, then it is unlikely that a professional will be able to act for the two of them in writing their wills. The firm that advised each party on their nuptial agreement should also be the firm that advises them on the content of their will. How many people ask couples if they have a nuptial agreement in place as part of their due diligence before they launch into taking will instructions.

Contentious wills lesson 101:

The Inheritance (Provision for Family and Dependants) Act 1975 and divorce proceedings share similarities in how they address financial provision, as both involve the court assessing what is “reasonable” or “fair” in the circumstances. In both cases, the court considers the financial needs of the parties involved. For example, in divorce, this includes spousal maintenance, while under the Inheritance Act, it involves ensuring reasonable provision for dependants. In both scenarios, the court has wide discretion to decide what constitutes fair provision, based on factors like the size of the estate or the marital assets. Mirror wills being set aside by the court where the circumstances show this is the correct thing to do.

If nuptial agreements are placed on a statutory footing, then it seems only logical that the same regulatory arrangements that apply to them should apply to will making. Firms will have to consider if it is a conflict of interest for them to make wills for both parties; instead, like for nuptial agreements, acting for only one of the parties. To ensure fairness in the circumstances and ensure that the will is less likely to be challenged in the future.

This could be the end of the mirror will and a change of business model for private client teams and will writers who will have to get used to acting for one party only when it comes to writing their will, severing joint tenancies and even preparing LPAs. Sending the other party to another firm for separate independent legal advice. This can only be a good thing for consumers as firms will have to be clearer on costs, better at communicating with clients and provide a better service all round as couples will be able to compare and contrast their respective law firm’s performance.

Interesting times ahead.

Ian Bond is a solicitor and member of the Law Society’s Wills & Equity Committee